First, some credit. Radley Balko, The Agitator, has been blogging on this topic for quite a while. He has the best collection of posts on the problems that I have seen, including a Raid Map. It provides details of botched paramilitary police raids over time that Radley has collected. For those of you that think things are okay, this might be eye opening for you.

It seems evident that there is a problem. Innocent citizens die and cops get off with, at most, a slap on the wrist. People don’t trust cops and instead view them with suspicion and distrust. Cops conduct no knock raids on flimsy evidence, use armored vehicles, where every podunk town has a SWAT team and uses them. Then we have, just to make sure everyone realizes that it isn’t the party that’s in power that’s the problem, the BATF and Waco, where Koresh could have easily been taken into custody without the massacre that ensued and where the BATF used para-military playbooks even though they were counter-productive and created a worse situation. I could go on for pages with these sorts of examples, but Radley has already provided them for us. Why don’t we just stipulate that there is a problem.

Let’s define the problem, then. I won’t bother with the conservative definition of the problem, aside from saying that the idea that agents of authority should be automatically respected, that the Drug War is somehow moral and that police should have significant para-military capability is a set of ideas I cannot get on board with. I will point out that the men that founded our country were suspicious of the government and designed our Constitution (as well as the state governments they helped to create) to put boundaries on our government and its agents. While many will try to separate the government and the voluntary agents, saying that those agents are doing their job and the policy is really the problem, I point you to the War Crimes Trials in Germany and Japan after WWII. We established there, as a point of law and morality, that “following orders” is not a reasonable defense.
Back to the problem, then. Let’s be frank. The problem is corruption and abuse of power at ALL levels of government, not just Congress, or the White House or the State Legislature, or whatever the target of your wrath is. The reality is that the destruction of Federalism, brought about by the 17th Amendment, the Supreme Court’s interpretation of the “Commerce Clause” and the vast expansion of Federal Powers that brought about, and the complete disregard for the 9th and 10th Amendments has led us to this point. I don’t, however, want to tackle the “whole problem”, just the one with our police culture that is leading to the violation of the individual rights of an ever increasing number of citizens by police officers.

So, what is the root cause of the problem? It seems obvious to me that accountability is the means to prevent such abuse of power. So, are the police currently accountable to the citizens they are supposed to “serve and protect”? If they were, would they conduct raids like the one on Culosi (for private gambling, where Culosi was killed by negligent behavior of one of the raiding police officers) and then hand out a mere 3 week suspension without pay as the consequence of killing an unarmed, non-violent “criminal”? The root problem here is accountability. So, we have to ask ourselves, why aren’t the police accountable?

First, we have the issue of “sovereign immunity”. The Federal government, and it’s law enforcement agencies, cannot have suits brought against them for negligence by agents of the government. This usually extends to state, county and municipal law enforcement agencies also. This means that, unless the agency polices itself, there is almost no recourse for citizens in cases like the Kathryn Johnston killing in Atlanta. The officers in question may be able to be sued, although most such cases have been dismissed. If they can show they had a warrant (they did), that they did not behave in a criminal fashion (that is quite questionable right now) and that they were involved in a lethal force incident (they were), they’ll win the lawsuit. So, there is essentially no mechanism in civil law for citizens to hold agents of the government accountable for their behavior.

Second, we have the issue of where the money comes from. This blog has talked for a long time about the lack of accountability in the Federal government. Unfortunately, there is no more accountability at the local level, primarily because significant amounts of local funding comes from the Federal government. Literally millions of pieces of military hardware, including assault rifles, armored vehicles and aircraft have been transferred from the DoD to local law enforcement. And, since the early days of the Clinton Presidency, huge funding has been in place to directly fund local police agencies. Remember Bill Clinton’s pledge to put an extra 100,000 police officers on the street? That was achieved by providing money directly to states, counties and municipalities. Since then, the funding has grown under the Patriot Act and the various “War on Terror” budgets and acts. Our police now have million dollar command posts, assault rifles, military grade body armor, SWAT teams, armored vehicles, helicopters and much more, paid for by the Feds, with no accountability to the local citizens that created the police department in the first place. In fact, our police are better equipped than many militarys in the world are.

Third, we have a significant financial incentive that also fails in the accountability department. Asset seizure and forfeiture laws allow assets used for illegal drug activity to be seized and sold by the government (all levels) even though the owner of the assets has not been convicted of any drug related crimes yet. This is a source of funding for many police departments that has almost no accountability and very little in the way of due process. If the police search your house and you have narcotics in the house, they often can seize your house and sell it at auction. Ditto for your cars, furniture and other property. One of the main reasons for no knock raids is to prevent you from destroying evidence. Why is that important? So the police can seize your house, perhaps?

So, how can we fix the problem? Return accountability to the citizen’s oversight of their local law enforcement agencies.

Undo the massive federal funding and equipping of police forces. Missoula, MT has no real need for armored vehicles, SWAT teams and military helicopters. Returning that equipment to the military makes sense. Stopping direct funding and earmarking of law enforcement agencies would ensure that those agencies would have to get their funding with the approval of their local city councils and citizens.

Undo the sovereign immunity of federal, state, and local law enforcement agencies. If a police officer is negligent, they should be able to held accountable. Both the agency and the officer. Civil suits for wrongful death are a powerful tool for this. If citizens have to pay higher taxes to deal with negligent behavior by police, they will demand change.

Get rid of asset seizure laws. Only allow assets to be seized after a criminal conviction. We need to make sure that police agencies are funded in transparent and accountable fashion and asset seizure laws are neither.

Better yet, let’s end the “War on Drugs”. That, however, won’t happen anytime soon. But incremental change to return accountability and transparency to our civil servants seems to be a solid step in the right direction. Right now, we have a government and agents with little, or no, accountability. Our Founders dealt with such a situation themselves. And, ultimately, had to use force to make change. We should make the changes now, before our only choice is to use force.